Injury Claims for Rear-end Auto Accidents
by Judge Anthony P. Calisi (ret.)
According to the National Safety Council, each year there are more than 6 million car accidents. Of those, 2.5 million are rear-end auto accidents. In this section, we cover various aspects of rear-end collisions, including:
- Common causes of rear-end accidents
- Common injuries
- Who’s at fault – liability
- Gathering important evidence
- Duty to mitigate
- When you need an attorney
Common Causes of Rear-end Auto Accidents
While reviewing each of the following causes, it’s a good idea to keep in mind how negligence may play a role in your personal injury claim.
Tailgating – Most state traffic codes have abandoned the law requiring a car stay one car-length behind for every 10 miles per hour. Today, the majority of traffic codes simply require a driver to stay a “prudent” distance behind the vehicle in front. When a driver is imprudent and tailgates, he often can’t stop quickly enough when the driver in front comes to a sudden stop.
Driver inattention – Distractions from cell phone usage, eating, putting on makeup, listening to loud music, conversing with passengers, looking into the back seat to check on young children, and looking away from the road are frequent causes of driver distraction.
Driver intoxication – Alcohol significantly compromises a driver’s reflexes, especially when he’s intoxicated. He can’t judge distances. While reaching for beer cans or other open containers of alcohol, he diverts his eyes. Falling asleep is also a common occurrence for intoxicated drivers.
Weather conditions – Rain, snow, slush, ice, high winds, and fog can affect a driver’s ability to see in front of him, to stop in time, and to keep his car within the lane.
Road defects – Potholes, stop signs bent or obscured by foliage, and non-working traffic signals can all contribute to a rear-end accident.
Children, animals, and pedestrians – Animals in the road, soccer balls, baseballs, footballs, children wandering into the street, and jaywalking pedestrians can all force a driver to stop unexpectedly.
Construction – The sudden appearance of flag-bearing construction workers or cement, and other commercial vehicles suddenly backing into traffic frequently cause unexpected stops.
Police and radar guns – Sudden stops when police cars or radar guns appear or when the police stop a vehicle on the side of the road are major distractions.
Accidents – Sudden car accidents directly in the lane of traffic ahead can bring everyone to a quick stop.
Faulty brake lights – Cars whose brake lights fail don’t give the car behind adequate notice of the driver’s intention to stop.
Vehicle breakdowns – Cars that break down in the lane of traffic, especially when no flares are set out are major distractions.
Common Injuries in Rear-end Accidents
“Whiplash” is a term used to describe pain and stiffness in the neck and shoulder area that occurs when the neck, shoulders, and spine suddenly and violently move, or “snap” well beyond their normal range. Also referred to as hypertextension and hyperflexion, the sudden snapping of your neck, shoulders, and spine is like the motion of a whip as it snaps, hence the term whiplash.
According to the National Safety Council, 20 percent of all people involved in rear-end collisions suffer a whiplash injury. Of those, almost 80 percent experience pain and soreness lasting longer than a week. Fifty percent have pain and soreness that lasts more than a year.
The force of impact, even at low speeds, can result in compression of your spine and the disks located in the lower back area of the spinal column. It’s often referred to as “disk herniation.”
The sudden impact is like the less serious force on a person’s back and spine when an elevator suddenly and unexpectedly stops. When it does, the force of gravity is strong enough to buckle the knees and exert extraordinary pressure on the vertebrae. The resulting pain and soreness can be excruciating.
Face and head injuries – airbags
Many rear-end auto accidents occur at speeds of less than 20 miles per hour. Although there are various factors involved in the deployment of an airbag, it’s commonly understood airbags deploy at speeds of 20 miles per hour and higher.
In a slow speed rear-end collision when airbags don’t deploy, your face can smash into the steering wheel. The force of the impact can break your nose, fracture your cheek and jawbone, and even detach your retina.
Less serious injuries are lacerations (cuts), contusions (bruises), and abrasions (scrapes) to your face and scalp. When speeds are higher than 20 miles per hour and airbags do deploy, the impact can result in burning of your facial area and scalp.
Wrist, finger, hand, and arm injuries
The force of a rear-end car accident can cause your wrists, hands, fingers, and arms to jerk violently on the steering wheel and hit the sun visor. If you’re a passenger, the same injuries are possible. Even when airbags deploy, your wrists, fingers, hands, and arms can still become wedged between the airbag and the steering wheel or dashboard.
Seatbelts and harnesses are supposed to instantly and firmly hold your torso from striking the steering wheel, dashboard, sun visor, and even the console and shifting column. When your torso thrusts forward, the seatbelt can lacerate your skin and bruise your hip, chest, and torso area.
Who’s at fault?
All drivers have a legal duty of care (obligation) to drive safely. This means drivers must follow local traffic laws, not drive recklessly, maintain a proper lookout for other drivers and pedestrians, and keep their cars in working order so they don’t cause accidents.
When a driver breaches (violates) his duty of care, it’s often because he’s negligent. In a rear-end collision, this can happen when he takes his eyes off the road or drives recklessly, or when his brakes fail because he didn’t have the brake fluid checked or the brake pads replaced. These are all negligent actions.
When a driver’s negligence results in his striking your car from behind, you have a legal right to compensation for your injuries and related costs, also known as damages.
However, before you file a claim against his insurance company, you must have proof he was negligent and his negligence was the direct and proximate (legally acceptable) cause of the accident and your injuries. The courts call it your burden of proof. Simply put, the burden is upon you to prove the other driver caused the accident, and the accident caused your injuries.
To meet your burden of proof, you must have a preponderance (majority) of the evidence against the other driver. How much is a preponderance of the evidence? Well, a good way to look at it is to say your evidence must be at least 51 percent more than any evidence the driver might have saying it’s not his fault.
If an insurance company doesn’t agree you have at least 51 percent of the evidence against their insured, it may deny your claim. Insurance company claims adjusters know what 51 percent of the evidence is. They have training to spot evidence and analyze it. Just make sure you have as much evidence of his negligence as possible.
If your evidence clearly shows the other driver was at fault, the claims adjuster will know you met your burden of proof. He knows if he tries to get away with denying your claim, you may hire an attorney. That’s the last thing he wants.
To meet your burden of proof, you must gather as much evidence as possible to show the other driver was negligent. The more evidence you have, the better your chances are. Let’s look at some of the best evidence in rear-end auto accidents.
Call the police
If someone has injuries, you need an ambulance. If there are no injuries, the police probably won’t come. These days, unless someone is injured, the accident is slowing traffic, or it presents a danger to other motorists or pedestrians, the police won’t respond. Whether they respond or not, you need to gather as much evidence as you can.
Take out your camera. If you don’t have one, use your cell phone. Unless it’s absolutely necessary for safety reasons, don’t move the cars. Take pictures of the other driver and all passengers. Photograph the cars as they are. Photos of the point of impact are very important. Take close-ups and wide shots to include traffic signs, stoplights, and other information in context with the accident. This may be your only chance to take photos, so click away.
If a police officer is administering a field sobriety test to the other driver, use your cell phone’s video function to record the test from as close as possible. Also, photograph empty beer bottles or open containers of alcohol in and around the driver’s car.
Incident or police reports
If the police respond, make sure to get the service number of the police report. You can pick it up from the police department in a few days for less than $10. The report will indicate the investigating officer’s opinion of the cause of the accident. It will also show any tickets issued to the driver such as failure to yield, following too closely, reckless driving, etc. It will also show whether the driver has an arrest record for DUI or other infractions.
Take out a piece of paper. Write down witnesses’ names and contact information. If they have information showing the other driver was at fault, get it. Maybe a witness saw him texting, talking on the phone, looking away, etc.
Admissions of fault are very important. Statements like “My brakes weren’t working,” or “I was on my cell phone,” or “I shouldn’t have been drinking,” are all considered admissions against interest (against the driver’s self-interest) and are strong evidence of negligence.
Your medical records are crucial. Remember you must not only prove the other driver caused the accident, but also that the accident was the direct and proximate cause of your injuries. Here’s where your medical records come into play.
It’s important for your doctor to confirm in her diagnosis that your injuries were directly caused by the accident. She might say your concussion resulted from hitting your head on the steering wheel, or that your whiplash was caused by your neck snapping back from the force of the impact. The connection between the accident and your injuries is crucial. In her prognosis, it will help if she refers to the type of medical treatment you may need in the future.
Duty to Mitigate – Comparative Negligence
Although the evidence may be clear the other driver slammed into the rear of your car, if you contributed to the accident in any way you will share liability for your damages. The claims adjuster will incorporate your own negligent actions into her evaluation of your insurance claim.
Example of shared liability
You were struck from behind while driving and were injured. Your medical bills alone came to $10,000. However, there’s evidence your brake lights weren’t working at the time of the collision. Instead of the other driver accepting 100 percent liability, the insurance company said you were 50 percent liable because your brake lights weren’t working, and as a result their insured didn’t know you stopped.
In a case like this, the insurance company compares your percentage of negligence to the other driver’s. Your compensation goes down according to the percentage assigned to you. That’s comparative negligence.
Nine out of 10 times, the vehicle striking another vehicle from behind is fully liable for the damages he causes. This includes property damage to the car itself, personal property inside the vehicle like computers, cell phones, etc., and any injuries the driver and his passengers suffer.
There are a few exceptions to rear-end liability, such as:
- If the driver in front was driving erratically or recklessly, making it impossible for the driver behind to avoid hitting him, even from a safe distance behind
- If the driver in front suddenly stops his car in the lane of traffic and fails to set out flares or give any other reasonable notice to the driver behind
- If the driver behind is traveling a safe distance and at a safe speed, but fog, snow, rain, or other inclement weather conditions makes it impossible for him to stop
- If a driver behind is traveling at a safe distance and speed behind the vehicle in front, but a third vehicle strikes the driver from behind, pushing him into the first vehicle
These exceptions can serve to mitigate or extinguish the liability of the driver who strikes another vehicle from behind. In cases like these, the insurance company compares each driver’s actions to the other’s actions. The drivers will receive compensation according to the percentage of their responsibility for the collision. Forty-five states follow the comparative negligence rule.
Do you need a lawyer?
If your injuries are the more serious hard injuries like broken bones, disk hernias, spinal cord injuries, etc., you need an attorney. Hard injury insurance claims often require expert medical testimony, discovery of evidence (learning what the other side has), etc. Your attorney can subpoena this evidence and more.
Adapted from: http://www.injuryclaimcoach.com/rear-end-auto-accident.html#